March 4, 2017

I won’t comment in detail on the substance of today’s latest outbreak of our fevered politics: Trump’s accusation that Obama ordered wiretapping of Trump Tower and the Trump campaign. I will just mention one fact that strongly supports the veracity of Trump’s allegation: namely, the very narrow–and lawyerly–“denials” emanating from the Obama camp.

Obama and his surrogates–notably the slug (or is he a cockroach?) Ben Rhodes–harrumph that Obama could not unilaterally order electronic surveillance. Well, yes, it is the case that Obama did not personally issue the order: the FISA court did so. But even if that is literally correct, it is also true that the FISA court would not unilaterally issue such an order: it would only do so in response to a request from the executive branch. Thus, Obama is clearly implicated even if he did not issue the order. He could have ordered his subordinates to make the request to the court, or could have approved a subordinate’s request to seek an order. Maybe he merely hinted, a la Henry II–“will no one rid me of this turbulent candidate?” (And “turbulent” is a good adjective to apply to Trump.) But regardless, there is no way that such a request to the court in such a fraught and weighty matter would have proceeded without Obama’s acquiescence.

I therefore consider that the substance of Trump’s charge–that he was surveilled at behest of Obama has been admitted by the principals.

This episode illustrates a broader point that is definitely useful to keep in mind. What Obama and his minions (and the Democrats and many in the media) say is likely to be correct, strictly speaking, but fundamentally misleading. In contrast, what Trump says is often incorrect, strictly speaking, but captures the fundamental truth. I would wager that is the case here.

The lawyer word games are not limited to this episode. The entire Sessions imbroglio smacks of scumbag lawyer tactics. The Unfunny Clown, Senator Al Franken, asked (in a convoluted way) a very narrow question (which was related to an even narrower written question in a set of interrogatories) about Session’s interactions with the Russians. Sessions answered the question–which was not an unconditional query about contacts with the Russians, but which related to very specific types of contacts and discussions. Franken and the Democrats then accused Sessions of perjury because the Senator (and then-Attorney General designate) had met with the Russian ambassador to the US on two occasions. Asking a narrow question, and then claiming the answer was a false response to a broader question (that was not asked) is a sleazy lawyer trick (and one that has been tried on me, BTW).

One last thing. Why did Trump push this button today? I can think of offensive and defensive reasons. Offensively, he might want to gain the initiative in the war against Obama and the intelligence community. Defensively, this could be an excellent way of derailing the Russia hysteria, and the calls for an investigation. If it turns out that there was an FBI investigation, and it turned up nothing, then there is no justification for further investigation, whether by Congress or law enforcement. So it could actually help Trump if the FBI and the intelligence community were forced to acknowledge that they had investigated, to no avail. By raising the issue, Trump is pressuring the FBI to put up or shut up.

Figuring out Trump’s reasoning is always hard, but it is worth remembering that he is often at his most clever when he appears to be at his most unhinged and outrageous. So stay tuned. This isn’t over. By a long shot. And given that Trump has emerged triumphant whenever his foes have declared him to be dead meat, I would be very nervous right now if I were Barry or Ben or anyone in the IC.

Call me a simple-minded foreigner, but I don’t understand the fuss. Of course they were spying on him.
The only interesting questions are (i) was it legal? and (ii) does it matter whether it was illegal; surely Obama is above the law?

The swamp is fighting back. Here’s why it’s important: This is just another example of an underhanded and little known way in which “people in power” appeal to the letter of the law to subvert the intention of the law. These are laws designed to protect ordinary citizens from deep state overreach, and should matter just as much to the left wing as they do to the right. Ordinary Americans (the echo chamber you _never_ hear) are faced with a litany of unknown unknown affronts to their civil (individual) rights. If enough of these see the light, just maybe some mid-level functionary in a future administration will give more than lip service to means in the pursuit of ends. How else do you reclaim a swamp?

First, fire everyone hired by the Obama administration. Second, promise that Trump should promise Obama and Clinton a blanket pardon after their indictment. Third, Issue an executive order banning all government employee unions. It was an executive order by JFK that established these unions. It can be undone by same executive order.

The Left thinks a warrant proves that Trump did something terrible. (How quickly civil libertarians forget their principles when politics appears!) Trump is using what I call the “scream bloody murder defense,” which is especially useful when one is accused of a terrible crime. If you are innocent, you scream that you have been falsely accused. If you are guilty, you don’t want anyone to know that you have been accused. Using the defense does not prove that you are innocent, but it certainly communicates that impression.

As an attorney who has done my share of criminal defenses, I must say that the existence of a FISA warrant troubles me profoundly. I don’t care which party you belong to. If you are a “US person” and the FBI is using a FISA warrant to monitor your communications, I am concerned. Either you are a terrorist who threatens our way of life, or the government is threatening our way of life by monitoring you.

I am afraid you are incorrect on one major point, Professor. Franken did noteven ask Sessions if he had ever had any meetings with the Russians. He asked ” if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign, what will you do?”

It is quite telling that the media rarely, if ever, publishes the actual question and their answers which would PROVE Sessions honestly answered the questions. Every Trump surrogate on any media source should memorize the actual question and response and recite them religiously and ask the host to show where, exactly the lie is.

The lynch (pardon the pun) pin in this case, is the fact that Zero in January 2017 changed the disclosure rules for NSA allowing all of Zero’s henchmen to start the flood of leaks. Of course, Zero ordered the surveillance it is the Chicago way.

(i) There’s only two circumstances when wiretapping of a US citizen is legal.

The first is authorized by a court with a search warrant as part of a criminal investigation (such as tapping the phones of two gang members discussing a drug deal). This did not happen with Trump.

The second is in a national-security espionage or terrorism investigation authorized by a warrant from the FISA court (established in 1974 after the abuses of Watergate). In this case, again, the government has to prove their case to the court (we need to wiretap Osama Bin Laden because he’s a terrorist and listen in on his communications, person A is calling Bin Laden, therefore we need to listen on him too). However, the warrant is narrowly tailored and is supposed to have stringent legal safeguards to protect US citizens who might inadvertently get caught up.

To give an example of this in action, we know fromt eh Flynn leaks that there was a FISA tap on the Russian Ambassador. Say the ambassador calls the Secretary of State to request a public meeting over a matter of diplomatic interest, say a upcoming UN resolution (which is his job). That conversation is recorded under FISA, but since it is clearly not espionage, *that conversation must be removed from the records and the identity of the US citizen called, in this case the SoS must be concealed to prevent damage to that person*.

(ii) Failure to remove that identifying feature, and leaking any FISA gained conversation is a federal crime-full stop. Likewise, misrepresenting facts, or leaving out pertinent facts in the FISA warrant is a felony (and there was a problem with the warrant since the first one was denied by the court, which is not a normal occurrence). For instance, if you say you want to wiretap the person at the penthouse in 725 5th Avenue, NYC, you *must* include that the person is then-candidate Donald Trump. If, in fact this was done, the people who authorized it are in danger of going to jail, likewise Obama can be sent to join for conspiracy to commit federal crimes. The person or people who leaked the Flynn call committed a federal crime (whether or not they get caught and go to jail is a different matter of course).

The big question is if in fact there’s any paper trail to Obama, if there is, he can wind up in jail over this. If a verbal order was given (and because of the political sensitivity of wiretapping a candidate to replace him, he should have been notified and have to sign off on it), he may walk, but his political reputation will be in ruins.

Perhaps this is a good place to ask a question that’s been nagging at me. And…maybe explain the “fuss” for dearieme (1. above). I’ll ask it in the most exaggerated form:

Suppose, in vacuuming up virtually all our communications, the NSA sort of tripped over records that reveal an active serial killer (a U.S. citizen). The communications are purely domestic. No foreign entity is involved. It is my understanding that agents would be required to immediately delete that information and never mention it again. Is that true? Even if it could solve heinous crimes?

If that’s the case, then it should go toward helping dearieme see the gravity of the Trump surveillance. If we can’t use these methods to uncover serial killers, we certainly can’t use it to satisfy our curiosity as to whether our political opponents are as craven as we believe them to be (with no evidence).

Gene Hackman – Sec of Defense; Kevin Costner, Navy hero, recruited to be liaison with the —– Intelligence Community —– including the CIA.

A bunch of congressmen want to build a “phantom sub,” which is invisible to sonar, but because it is the size of an aircraft carrier, would be visible from anywhere, nevertheless. The Sec of Defense thinks it is not a good idea.

Kevin Costner is supposed to figure out whatever the IC knows and provide it to the Sec of Defense.

As for why now? Pretty simple: shift the playing field and discredit leaks. Now there’s going to be tremendous defensiveness to protect Obama by the usual suspects; Republican’s can mount a slow moving investigation and control the news cycle. Furthermore, leakers now look “Nixonian”, undercutting the efficacy of fresh revelations about Russian contact. A well done move.

Alright, Barack Hussein Obama II, quite publicly and as President of the US, lied to the American people some 25 times – e.g., “You can keep your doctor.”, “Your health care costs will go down by $2,500” – concerning the so-called Affordable Care Act.

He also said this: “The future must not belong to those who slander the prophet of Islam.” (UN, Sept. 2012).

So, I would suggest that he had no scruples about a wink and a nod about wire-tapping his political opponent, an opponent – Donald Trump – who was declaring that he will dismantle Mr. Obama’s legacy. And what did Mr. Obama say again about his legacy?

[…] But it’s interesting to look at the allegations in each case. When the accusations of Russia “hacking” the 2016 election a lot of people asked, quite reasonably, “What exactly do you mean by that?” Nobody came forward and gave a clear answer to this question. Two or three months after the allegations were first aired I still don’t know what, specifically, the Russians have done. That’s why Trump’s reaction has largely been “WTF are you on about?” They tried again with Flynn who got fired on spot, probably for bullshitting his management rather than breaking any laws or ethical codes. They’ve had another go against Sessions, with the media spinning like fury to portray the Attorney General as having lied under oath. As Streetwise Professor explains, he did no such thing: […]

Shmuck Schumer and Al Frankenshteen, and plenty of the “different people” – deference here to dearieme noting that Democrats are “the different people” – are screaming to high heaven about Rashans “colluding with Trump.” Supported, of course, by WaPoop and the NY Slimes, which is owned by chief Mexican corruptioneer Carlos Slim.

Whenever Democrats do the same thing as Republicans – well, that’s “different.”

Shmuck Schumer, Harvard ’73, yet another fine product of the Kremlin-on-the-Charles, found the perfect excuse for meeting with Putler – Krispy Kreme donuts.

[…] with a much stronger hand than the lying press would lead you to believe. Various legal and academic commentators all agree that if the Obama administration did run a surveillance operation against […]

I agree the Obama denials have a lot of weasel words, thus could be false. and certainly Obamas past record is not trustworthy. But I am also seeing weasel words from various Trump spinners now, when they talk about IF the charges are true. If they know for certain they should say they have seen the solid evidence themselves, and look forward to that evidence being revealed to the public, not talking about how something is a possibility that needs to be investigated.
I am going to rely in the intel committee. They have access to the same info that Obama and Trump do, and have at least some members without a partisan axe to grind for either Obama or Trump, who may be more interested in their reputations for honesty, rather than having to spin for either side.

former student of yours at U ofC. Here is my take. Trump set a trap to tamp out the Russia BS for once and for all. First, he knew about this eavesdropping for a long time. Anybody with a couple of neurons and a working synapse believed this was going on. Even the leaks to the MSM alluded to this (whoops, we probably shouldn’t have done that). So with all of this Russia crap, he finally decided to set a trap. Accuse Obama of authorizing a wiretap of Trump Tower. The MSM rushes to Obama’s defense. You can’t accuse the IC of such a thing because it won’t create enough hysteria in the MSM (even though Obama and the IC were one and the same). Of course, the reaction is (carefully worded) that Obama would never (cardinal rule) order such action against a Presidential candidate or any ordinary citizen for that matter. So now they have to answer the question of whether the “unauthorized” wiretapping actually took place as alluded to in the NYT in January. They avoid answering that question directly with good reason (read Jon Favreau’s tweets as I am sure you have). The trap is as follows. You either admit that your suspicion of Russian/Trump collusion is based on illegal wiretaps or on “other” evidence that has never been leaked or alluded to. You either say “we eavesdropped and heard things and we can’t disclose it” or you deny it and are left with no other evidential pillar to rest on. They have always relied on IC sources to perpetuate this narrative. If the Obama admin and the IC denies this eavesdropping happened, they are left empty handed. They either admit the Obama admin/his minions acted illegally or they drop the Russia conspiracy because they would have to provide non-wiretapped evidence which they don’t have. Checkmate. Trump takes the King. I would love to her your thoughts. ([email protected]). Your class was great. I read your blog religiously. BTW, my graduate internship was at Enron Capital & Trade Resources.

I agree with you. He is trying to put his adversaries on the horns of a dilemma, and to force the FBI and the IC to put up or shut up.

There are three alternatives:

1. No surveillance–then the leaks purportedly based on surveillance are fabricated.
2. There was surveillance and it found nothing. This is a twofer for Trump. He was the victim of dirty tricks and the allegations of illicit contacts with the Russians are false.
3. There was surveillance and it found something compromising. Here Trump is toast.

Trump knows whether 3 could be true. If he can rule that out, it is in his interest to force revelation of 1 or 2. Hence his accusation.

His adversaries in politics (mainly Democrats, ex-Obama people, but some Republicans too) and the media (but I repeat myself) realize their dilemma, and are trying to have it both ways. It’s like something out of quantum theory. There are simultaneously wiretaps and no wiretaps. Trump wants to keep the heat on to prevent them from having it both ways.

I’d be glad to recommend a CW book or books but it would help to have an idea of what kind of thing you are interested in. Broad narrative about the entire war? Book about a specific battle or campaign? Your mentioning that you read Shiloh suggests the latter. Recently there have been a spate of well-researched but wretchedly written (and edited!) battle books.

The best battle book (books actually) that I’ve read recently are David Powell’s trilogy on the Chickamauga Campaign: A Mad Irregular Battle; Glory or the Grave; and Barren Victory. That will keep you busy for a while!

So the US IC bugged Trump hoping to find evidence of collusion with the Russians bugging Hillary. Is that the motivation?

Progressives are like one of my toddler daughters. I ask her if she had an accident and peed her pants. She answers very seriously no Amy did it. Amy is her nanny. I guess she thinks if she says it often enough I will start to believe her.

The Antietam and Gettysburg battlefield sites are beautiful. The North was in a much better position for preservation after the war. The forts at the mouth of the Mississippi were re-purposed with WW1 heavy artillery emplacements. Petersburg, with the Crater, is kind of interesting, along with miles of fortifications still visible in the medians of streets. The stone wall at Fredricksburg is still there.

For a guy who spent five years outing Russian propaganda at ZH, it’s strange that you’re now deflecting what could be very real Russian influence in the Trump administration. Perhaps your hatred of Democrats is bigger than your hatred of the Russians?

When you first outed ZH six years ago, you mentioned that they had obvious connection to the occupy movement and ignored the libertarian agenda, which ZH has been promoting, and has since manifested as “End the fed” or whatever.

Stop focusing your considerable powers on democrats and realize who the real bad guys are in this Russia thing. It’s not the useful idiots at occupy, and it sure as hell isn’t the Obama administration.

@AndyEss-Yes, both of those sites are excellent: Antietam is one of my favorites. Chickamauga and Shiloh are also very well preserved. They are deep in the South: how well preserved a battlefield is depended crucially on how close it was to the path of development, and the interest of the federal government in preservation. The latter factor was primarily driven by the veterans, the Northern ones in particular. Chickamauga and Shiloh were relatively isolated as compared to Fredericksburg and some of the Richmond-area battlefields, so development did not encroach and land costs were low. Also, there was less of an interest by Union vets in preserving the sites of disasters (like Fredericksburg or the Wilderness) (though Chickamauga is something of an exception).